Opinion
7 Div. 208.
October 12, 1933.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
M. C. Sivley, of Gadsden, for appellant.
A complaint is defective and subject to demurrer where the suit is based on a contract against a municipality, unless it is averred in the complaint that the contract sued on was in writing, signed and executed in the name of the town or city by the mayor, or by an officer duly authorized to make the contract. Code 1923, § 1899; Mobile v. Mobile E. Co., 203 Ala. 574, 84 So. 816; Coleman v. Hartford, 157 Ala. 550, 47 So. 594; 28 Cyc. 643, 647. The complaint is defective, in that it is not averred that the agent of the corporation was acting within the line and scope of his authority at the time of making the contract. Addington v. Amer. Cast. Co., 186 Ala. 92, 64 So. 614; Palos C. C. Co. v. Benson, 145 Ala. 664, 39 So. 727; Mayer v. Thompson, 104 Ala. 611, 16 So. 620, 28 L.R.A. 433, 53 Am. St. Rep. 88; Morrison v. Clark, 196 Ala. 670, 72 So. 305; Wise v. Curl, 177 Ala. 324, 58 So. 286; Daniels v. Carney, 148 Ala. 81, 42 So. 452, 7 L.R.A. (N.S.) 920, 121 Am. St. Rep. 34, 12 Ann. Cas. 612; Alabama G. S. R. Co. v. Pouncey, 7 Ala. App. 548, 61 So. 601. In a suit based upon an oral contract, a complaint is defective where it is not averred that the contract was based upon a legal and valid consideration. Moundville L. Co. v. Warren, 203 Ala. 488, 83 So. 479; Birmingham R., L. P. Co. v. Littleton, 201 Ala. 141, 77 So. 565; Birmingham R., L. P. Co. v. Abbott, 6 Ala. App. 643, 60 So. 970; Newton v. Brook, 134 Ala. 269, 32 So. 722.
McCord McCord, of Gadsden, for appellee.
The averment that plaintiff entered into a contract with the city was sufficient, the added averment that it was made by and through its city clerk, Thomas, was surplusage. W. U. T. Co. v. Russell, 4 Ala. App. 485, 58 So. 938; W. U. T. Co. v. Cleveland, 169 Ala. 131, 53 So. 80, Ann. Cas. 1912B, 534. The complaint averring that plaintiff contracted with the city, it will be inferred the contract was a legal, binding one, and therefore in writing, if under the law this were necessary. But it is not required by law that the contract to furnish water be in writing, since, in furnishing water, the city acts in the capacity of a private corporation. Montgomery v. Greene, 180 Ala. 322, 60 So. 900; Brooks v. Oxford, 223 Ala. 264, 135 So. 575. The promise on the part of one party and assumption of an obligation on the part of another is a sufficient consideration and will support the contract.
Special assumpsit for the breach of an alleged express executory contract, by which the appellant, city of Gadsden, a municipal corporation engaged in the business of furnishing water for domestic uses to its inhabitants, undertook to furnish water to plaintiff's residence for domestic use.
The appeal is on the record, and the questions presented relate to the sufficiency of the plaintiff's complaint.
The first contention is that section 1899 of the Code of 1923 requires all express contracts made by municipalities, except purchases for the ordinary needs of the municipality, to "be in writing, signed and executed in the name of the city or town." In support of this contention the appellant relies on the statute and the decisions of this court in City of Mobile et al. v. Mobile Electric Co., 203 Ala. 574, 84 So. 816, and Coleman et al. v. Town of Hartford, 157 Ala. 550, 47 So. 594.
The appellee's contention, on the other hand, is that the defendant in supplying water to its inhabitants acts in the capacity of a private corporation, and not in the exercise of the power of a local sovereignty, and therefore the statute is not applicable to contracts made by it in that capacity. City of Montgomery v. Greene et al., 180 Ala. 322, 60 So. 900; Brooks v. Town of Oxford et al., 223 Ala. 264, 135 So. 575.
The law is well settled that in the absence of charter provision or statute requiring contracts of municipal corporations to be in writing, a writing is not necessary to evidence a valid contract. But a writing is necessary where the charter or statute expressly requires it. 44 C. J. page 117, § 2216; City of Mobile v. Mobile Electric Co., supra; Reid v. City of Mobile, 213 Ala. 321, 104 So. 787.
So the question to be decided is whether or not the express contract declared on by the plaintiff is within the influence of section 1899 of the Code. In Town of Clanton v. Chilton County, 205 Ala. 103, 104, 87 So. 345, decided before the adoption of the Code of 1923, this statute, then section 1183 of the Code of 1907, was construed as applying to all express contracts. It was there observed: "Section 1183 of the Code [1907] itself does not conclude against the raising up of an implied promise on the part of a municipality in a proper case to satisfy obligations that in equity and good conscience it should discharge (see Allen v. Intendant, etc., 89 Ala. 641, 647, 8 So. 30, 9 L.R.A. 497); the whole design and effect of the statute being to define the mode of execution of express contracts by municipalities within its contemplation." (Italics supplied.)
This section was brought forward into the Code of 1923, without change, with the result that this interpretation became a part thereof (Barnewall v. Murrell, 108 Ala. 366, 18 So. 831), and the mere fact that, in making contracts for furnishing water to its residents, defendant exercises the powers of a business corporation does not change the fact that it is a municipal corporation.
There is nothing in the opinion of the court in Brooks v. Town of Oxford et al., 223 Ala. 264, 135 So. 575, 576, that militates against this position. That was an action on the case for wrongfully cutting off the plaintiff's water, and the holding was that the allegation that defendant "had for years furnished water to plaintiff at a rate specified in the complaint and that defendant had cut off plaintiff's water supply by reason of an alleged excess which did not in fact exist," sufficed to show that defendant breached a duty which it, as a public service corporation, owed the plaintiff.
Here the plaintiff sues for breach of an express contract, and because of this statute must allege that the contract is in writing.
The complaint was also subject to the objection pointed out by the demurrer; that it does not allege a consideration. On demurrer the complaint cannot be aided by intendment. The pleading is construed most strongly against the pleader.
We are therefore of opinion that the court erred in overruling the demurrers to the complaint.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.